Government in New Zealand
3 — Parliament
The New Zealand Parliament, the function of which, according to the Constitution Act of 1852, is 'to make laws for the peace, order, and good government of New Zealand', is, like the Parliaments of the other Dominions, a close copy of the British Parliament. By the Legislature Act of 1908 its privileges are defined as those exercised by the British House of Commons in 1865 in so far as they do not conflict with the Constitution Act.* Its standing orders likewise follow British practice, the principal points of difference arising from its relatively small membership, which makes possible a less strict control by the executive over debating time than is necessary in the British House of Commons. Normally, one session is held every year, beginning in June or July and finishing in October or November, though short sessions are sometimes held in February or March.
* The Legislature Act, 1908, it should here be observed, was a consolidating measure which in this respect merely repeated the provisions of the Parliamentary Privileges Act, 1865.
Most authorities on constitutional and international law agree that the New Zealand Parliament does not possess full sovereignty. The principal limitations on its sovereignty are of three kinds:
- (1) the Governor-General's power to reserve for the signification of the Sovereign's pleasure a bill passed by both Houses and sent to him for his assent;
- (2) the Sovereign's power to disallow, in certain circumstances, New Zealand acts;
- (3) the provisions of the Colonial Laws Validity Act of 1865.
The Governor-General's power of reservation is both discretionary and obligatory. Discretionary reservation, which is provided for in the Constitution Act (sections 56 and 59), is a legal but not a political restriction on Parliament's sovereignty, since it is by convention exercised only on the advice of ministers. Obligatory reservation is exercised either under instructions or under statute. The Governor-General may, under the Constitution Act (section 56) be instructed by the Imperial Government to reserve bills dealing with specified classes of subject matter. On New Zealand's elevation to Dominion status in 1907 the obligatory reservation clause was removed from the Governor's instructions, although it was generally recognised that the powers of reservation and disallowance could still be exercised in excep-page 35tional cases. For example, as recently as 1923 the British Nationality and Status of Aliens Act was reserved by the Governor-General, and it was again reserved in an amended form in 1928 'as a matter of policy'. But the Constitution Act also specifies certain matters in which the power of reservation must be exercised without prior reference to the Imperial Government. If, for instance, both Houses passed a bill to alter the salary of the Governor-General, reservation would be obligatory. The New Zealand Constitution Act (section 58) also confers on the Sovereign the right to disallow legislation. The Colonial Laws Validity Act of 1865, which is still in force in New Zealand, in effect provides that any New Zealand act repugnant to the provisions of an act of Parliament of the United Kingdom extending to New Zealand by express words or necessary intendment, or repugnant to any order made under the authority of such an act, is, to the extent of such repugnancy, inoperative. By adopting sections 2 to 6 of the Statute of Westminster, which it has power to do at any time, the New Zealand Parliament can remove the limitations on its sovereignty implicit in the Colonial Laws Validity Act.
On the question whether the New Zealand Parliament has power to legislate with extra-territorial effect there is some difference of opinion among lawyers and some conflict of precedent. The New Zealand page 36Supreme Court held In re Award of Wellington Cooks' and Stewards' Union that the terms of a New Zealand industrial award were binding on a ship registered in New Zealand wherever she might be. The value of this decision as a precedent appears, however, to have been cancelled by the decision of the Court of Appeal in the case Rex v. Lander, where it was held that a New Zealander could not be punished by the New Zealand courts for a bigamy committed in England. More important than either of these decisions is the action of the New Zealand Government in procuring from the British Government an Order in Council under the Foreign Jurisdiction Act of 1890 empowering the New Zealand Parliament to legislate for Western Samoa, which became a New Zealand mandate in 1919.
The extent of the constituent power of the New Zealand Parliament is likewise obscure. The Constitution Act of 1852 contained no reference to the constituent power; but an Imperial act of 1857 gave the New Zealand Parliament power to alter the provisions of the Constitution Act, with several important exceptions. The question is whether these exceptions continue to limit the constituent power or whether they have been nullified by section 5 of the Colonial Laws Validity Act of 1865, which declares that 'every Representative Legislature shall, in respect to the Colony under its Jurisdiction, have, and be deemed at all Times to have had, full Power to make Laws page 37respecting the Constitution, Powers, and Procedure of such Legislature; provided that such Laws shall have been passed in such Manner and Form as may from Time to Time be required by any Act of Parliament, Letters Patent, Order in Council, or Colonial Law for the Time being in force in the said Colony'. According to Berriedale Keith, 'the better opinion seems to be in favour of the wider power'. The first important exercise of the constituent power—the abolition of the provinces—did not test the legal issue, since an Imperial act of 1868 specifically declared the power of the New Zealand Parliament to abolish any province in the colony. Recent constitutional developments in other parts of the British Commonwealth suggest, however, that in practice the legal competence of the New Zealand Parliament to alter the constitution is not likely to be questioned. Of greater practical importance is the question whether the constituent power is limited by constitutional convention. The government which procured the passing of the Abolition of the Provinces Act, recognising that alterations to the constitution ought to be differentiated from ordinary legislation, deferred the operation of the Abolition of the Provinces Act until after a general election had been held and its mandate confirmed. This precedent was not followed when the term of Parliament was reduced from five to three years in 1879 or when the conditions of appointment of Legislative Council members were altered in page 381891, so that it cannot be regarded as a convention.
When, in 1934, the New Zealand Parliament, by a single section in a Finance Act, extended its own life from three years to four, both the propriety and the legality of its actions were called in question. Berriedale Keith maintains that 'to extend the life of the legislature without a mandate is clearly a strong step, justified, if at all, only by war'. An Australian authority, H. V. Evatt, calls such action 'an abuse of legal power' and says that 'the right and duty of the Crown in relation thereto are of the utmost importance'. It would seem, however, that the possibility of the Crown intervening (through its reserve powers) to prevent postponement of dissolution was finally disposed of in 1919 when the Imperial Government recalled the Governor of New South Wales, Sir Gerald Strickland, for threatening to refuse assent to a bill extending the life of the sitting Parliament. However, since the overwhelming defeat of the Government party in the 1935 general election in New Zealand is regarded as in part a consequence of the postponed dissolution, future Parliaments are not likely to extend their own lives except in an acute emergency.
The New Zealand legislature is bicameral; but although the upper chamber—the Legislative Council —has, on paper, wide powers, it does not play an important part in the processes of government and its proceedings are meagrely reported in the press.page 39
This was not always so. The Constitution Act provided for a Legislative Council consisting of an indefinite number of members appointed for life on the nomination of the Government. In the early period of New Zealand's constitutional history, the debates of the Council, by reason of the independence of its members, who had no need to propitiate either the electorate or the Government, could on occasions attract more public attention than those of the House of Representatives. But, as membership was for life, the vigour of the Council gradually declined; and when a Liberal-Labour Government came into power in 1891 the council's conservatism was its undoing. A Government bill to reduce the term of office of Legislative councillors to seven years was passed by the House of Representatives in 1891. Ballance, the Premier, requested the Governor, Lord Onslow, in 1892 to appoint twelve new members to the Legislative Council in order that the legislation of his party would receive reasonable consideration in a House of which only five of thirty-five members supported the Liberal-Labour Government. As Onslow was about to leave the country, he deferred the decision to his successor, Lord Glasgow. The new Governor would agree to only nine appointments, but after a bitter controversy in which Ballance appealed to the Secretary of State, Glasgow was forced to accept the advice of his ministry. Since this test case, the dependence of page 40the Legislative Council on the House of Representatives has been complete. Though it is customary for one of the minor portfolios to be held in the Legislative Council there is a strong feeling against any major portfolio being held there. In 1932 several Government members voted for a reduction in the education estimates as a protest against the portfolio of Education being held by a Legislative councillor.
In the writing of political history and in political discussion much time and trouble are saved by the use of labels. Governments are spoken of as 'Liberal' or 'Conservative' or 'Labour'; and the use of these adjectives implies the existence of a definite philosophy and a definite programme. But in a country like New Zealand, where political life is as much a struggle for office as a conflict of philosophies, the use of these labels somewhat hinders realistic thinking about politics. One reads that in such-and-such a year a Conservative government came into power. It would be much more revealing to read that in such-and-such a year two lawyers, five sheepfarmers, and a wholesale ironmonger, all of them over sixty years of age and three of them with university training, took over the government of the country. To know the social origins of members of Parliament, how they were educated, what ages they were when they were elected to Parliament is obviously of some importance.
In analysing the personnel of New Zealand Parlia-page 41ments it is convenient to regard the history of representative government in New Zealand as falling into four naturally demarcated and fairly equal periods. The first period begins with the opening of the first Parliament in 1854 and ends with the abolition of the provincial system in 1876. The second lasts from the abolition of the provinces to the Liberal-Labour 'revolution' of the early nineties. The third period lasts to the downfall of the Liberal regime in 1911. The fourth period extends from 1911 until the sweeping Labour victory at the polls at the end of 1935. Though it is as yet too early to generalise, it seems probable that the 1935 election marks the beginning of another distinct period.
In the first period of representative government in New Zealand the franchise was held by all males owning land to the value of £50 or leasing property of an annual value of £10. In 1854 the European population was only 50,000; and by 1876 it had risen to about 400,000. The following tables give the age groupings and average ages for the Parliaments of this period:
|60 and over||6|
|Average ages in Parliaments: 1854, 39.8; 1856, 39.2; 1861, 40.4; 1866, 43.3 1871, 45–0.|
In the next table standards of education are indicated. The 'primary' group includes those whose education stopped at the elementary stage, the 'secondary' group those who attended a High School or its equivalent.
In the occupational classifications which follow, 'commerce' indicates members who are managers of banks or commercial firms or who are traders on a large scale; 'trade' indicates members who are in a small way of business and 'manual labour' includes both skilled and unskilled workers. For the most part this classification indicates the occupations of members at the time they were first elected to Parliament.
|Trade Union Secretaries||—|
These early Parliaments are remarkable for the low average of ages, the relatively high standard of education, and for the preponderance of professional men.
In the period between 1876 and 1890 perhaps the most important political development is the introduction of the system of weighting the rural population for electoral purposes. This is also the period of the Continuous Ministry and of the domination of Parliament and the Cabinet by upper middle class businessmen and landowners. The personnel of the Parliaments is analysed in the following tables:
|60 and over||34|
|Average ages in Parliaments: 1876, 46.6; 1879, 45.9; 1881, 45.7; 1884, 48.5; 1887, 49.5; 1890, 47–4.|
The average of ages of members of Parliament, it will be noticed, is higher than for the previous period and still shows a slight rising tendency.
In these Parliaments there is a decline in educational standard. A third of the members for whom figures are available had only primary education.page 44
|Trade Union Secretaries||—|
The relative weight of the farming interest shows a slight increase, being about 29 per cent for the six Parliaments compared with about 24 per cent for the previous five Parliaments. Lawyers and professional men together still constitute the largest group, though their predominance is much less marked than in the previous period. There is an increase in the class of small traders and shopkeepers, who had little representation in the first period.
Between 1891 and 1911 New Zealand politics underwent a complete transformation. For forty years political power had been in the hands of men whose ways of thought were the product of an English rather than a colonial environment. The election of 1891, which brought the Liberals into office, saw the beginning of the process whereby political power was transferred to those who had grown up in the colonial environment. During this period the franchise was extended to all adult women and the property qualification was abolished. In 1894 page 45a regular payment of £300 a year for members of Parliament was introduced. The personnel of the Parliaments of the period is analysed in the following tables:
|60 and over||70|
|Average ages in Parliaments: 1893, 48.1; 1896, 49.0; 1899, 50.0; 1902, 51.1; 1905, 51.4; 1908, 50.6.|
It will be seen that the average of ages of members of Parliament is steadily increasing and that for the first time the age group 50-59 is the largest.
Members with only primary education are now the largest group.
|Trade Union Secretary||1|
The tendency, perceptible in the previous period, for Parliament to draw most of its members from the lower middle classes and for economic interests to be more evenly represented continues in this period. In the grouping of members of Parliament certain important changes can be seen. Among the professional men lawyers are by far the most numerous; and in the commerce and trade grouping the small shopkeepers now very definitely outnumber the rest.
In the period between the elections of 1911 and 1931 the small farmers created by the Liberal land legislation are the most important political group; but the period is marked also by the increase in the strength of the Labour party. The personnel of the Parliaments is analysed in the following tables:
|60 and over||101|
|Average ages of Parliaments: 1911, 50.2; 1914, 51.2; 1919, 51.8; 1922, 52.0; 1925, 54.9; 1928, 54-2; 1931, 58.0.|
The age average increases steadily from 50 in the Parliament of 1911 to 58 in the Parliament of 1931. The age group 30-39 is now practically negligible and the group 50-59 is easily the largest.page 47
The standard of education falls still lower in this period. More than half the members of Parliament have only primary education.
|Trade Union Secretaries||60|
The distinctive features of this table are the increase in the number of farmers, the further decrease in the number of professional men, and the emergence of trade union secretaries as an important group.
The election of 1935 brought a remarkable reversal of some of the trends perceptible in these tables and may possibly mark the beginning of a permanent decline of the political power of the small farmer. The new House elected in 1935 had an average age of 52 compared with an average of 58 in the previous House. The number of members under 40 was larger than in any Parliament since 1914. Educational standards rose slightly. Of the members 45 per cent had had only primary education, compared with page 4855 per cent in the previous Parliament; while the number of university men rose to 23 per cent from 16 per cent. In the occupational groupings the most marked change was the reduction of the number of farmers to 29 per cent compared with nearly 40 per cent in the previous Parliament. Trade union secretaries rose to 20 per cent of the total. It seems clear, however, that some of the changes in the composition of the House must be regarded as abnormal. At the election of 1938 the average of ages rose to 55 and there was a slight increase in the representation of farmers.
The above survey of the composition of New Zealand Parliaments suggests that the personnel of representative government in New Zealand is not greatly different from the personnel of representative government in other parts of the world. In 1929 the average of ages for the House of Commons was 53 years; for the United States Senate in 1931 it was 59.5 years; and for the French Chamber of Deputies in 1931 it was 50 years. Probably the most distinctive feature of the New Zealand Parliament is the heavy representation of farmers—seldom below 30 per cent. Farmers in the present British House of Commons are less than 5 per cent of the total membership, in the United States Senate about 7 per cent, and in the French Chamber of Deputies about 14 per cent. The percentage of lawyers is about the same as in the House of Commons and the Chamber of Deputies.page 49
Members of the House of Representatives are paid £450 a year,* subject to deductions for absence from sessions not due to sickness or other unavoidable causes. Travelling expenses to and from Wellington at the opening and closing of each session are allowed and also free travel on the railways. Members of the Legislative Council are paid £315 a year. Financially, therefore, the politician's career involves grave risks and promises no substantial rewards; and Parliament is with distressing frequency called upon to make compassionate allowances to the dependents of former members. From time to time the need for some sort of pension scheme for members has been urged in the House of Representatives.
* Shortly after assuming office the Labour Government introduced a scheme (the 'pool system') of sharing ministerial and Labour members' salaries. As a result, the yearly income of Labour members was increased by nearly £100, with a consequent reduction in ministerial salaries. In return members were expected to 'give all their time to the discharge of their Parliamentary duties and … to co-operate with Ministers in administrative and research work.' —Wilson, History in the Making (1937), p. 13.
The truth is that the New Zealand Parliament differs little from representative assemblies in other countries and other ages. If its debates are wanting in that elevation of tone of which the British House of Commons or the French Chamber of Deputies are occasionally capable, that is because of the subjects discussed, not because of the men who discuss them. The State in New Zealand is not concerned with those high issues of faith and morals which were the subject matter of politics in nineteenth-century England and produced some of the noblest outbursts of parliamentary eloquence; and, since New Zealanders are well content, perhaps too well content, to believe that their influence in foreign affairs is negligible, debates on foreign policy are rare. The New Zealand Parliament's main concern is with the effect of state activity on the economic structure and on the economic welfare of the people; and it is unreasonable to expect elevation in discussions about national housekeeping. The main reason why politicians are harshly judged is that, in popular thinking, the functions of representative assemblies are commonly misunderstood. This in turn is because in no sphere of government are constitutional and political page 52truths more at variance or more commonly confused. The theory of the constitution is that Parliament controls the executive, but the political reality is that the executive controls Parliament. The theory of the constitution is that Parliament controls public expenditure; the political reality, as will be seen later, is that Parliament has never controlled public expenditure in the sense of subjecting it to a critical scrutiny and rarely objects to an appropriation on financial grounds. Even the proposition that the legislature legislates has, on the political plane of thought, only a limited validity, since all important legislation is drafted to the executive's instructions and amended only with the consent of the executive.
The clue to the nature and functions of Parliament lies, not in legal forms, but in the relationship of its members to the electorate and political parties on the one hand and to the executive on the other. Here again legal and political truths are widely separated. The British constitution, it has been said, knows nothing about the people; Parliament is sovereign and therefore the member of Parliament is obliged to act on his own judgment and is bound by no undertaking save that to serve the State to the best of his ability. Manifestly, however, the representative of an electorate does not, once he enters the legislative chamber, become a free agent, tied neither to a party nor to a constituency. It is from the electors of Bristol, not from Edmund Burke, that the modern page 53member of Parliament takes his guidance in this matter; his electorate is not a ladder to be kicked away when it has served its purpose. In all democratic countries, the member is expected to be the political agent of his constituents, collectively and singly. He must present their petitions, air their grievances, and do bis best to secure for them what they regard as their fair share of public expenditure. This relationship between member and constituent is in New Zealand more intimate, and therefore more exacting on the member, than in most other democratic countries because of the smallness of the constituencies. The average number of inhabitants per single member constituency is in New Zealand less than 20,000, compared with 70,000 in Great Britain, 65,000 in France, and 210,000 in the United States. There is, moreover, a strong prejudice in New Zealand, particularly in the country electorates, against the non-resident member. The candidate who has a home and a business in his electorate, and who has served on its local bodies and entered into its community life, is well on the way to success at the polls. The evils which arise, particularly in public finance, from the subservience of members to constituents have been sufficiently emphasised. But there is something to be said on the other side. The obligation on the member to speak for his constituents is a very real safeguard of democratic government. It means that every citizen has, in the last page 54resort, an advocate to speak for him in the highest court of the land; it prevents governments losing touch with the governed; and it is a valuable counterweight to the member's obligations to his party.
But the most important practical qualification of the proposition that a member of Parliament is under no other mandate than to serve the general interest is provided by the party system. Representative and responsible government is party government; since it is the party system which enables the electors to decide, not merely who shall speak for them in Parliament, but who shall govern them. In most New Zealand Parliaments there are two or three men who have, or profess to have, no party affiliation; but in the great majority of constituencies elections are fought mainly and increasingly on party issues. The great majority of electors, that is, vote not for the candidate himself but for his party and do so on the assumption that he is not free, if elected, to change or abandon his party allegiance and that, during sessions, he will vote not according to the dictates of conscience or reason, but according to the instructions of the party whips. That being so, it is unreasonable and unrealistic to deride the politician as a 'party hack'. The alternative to the party system is either 'an impotent babble of virtuous voices' or a dictatorship. Clearly, then, a representative assembly is no place for philosophers, experts page 55in this or that branch of government, or original thinkers.
Since the member of Parliament is bound closely to his party and to his constituency, and since Parliament in reality performs few of the functions attributed to it by constitutional theorists, it is tempting to conclude that the quality of government would not be vastly different, and might even be improved, if Parliament did not meet at all. A New Zealand Prime Minister has recorded the opinion that the business community is happier when Parliament is not sitting. Judges of the New Zealand Supreme Court have commented sharply on the frequent failure of the New Zealand Parliament to express its legislative intentions in appropriate and unequivocal language; and it is generally true that statutory rules and orders are superior in point of clarity to parliamentary enactments. Nor can it be denied that, in New Zealand, as in other countries, the importance of Parliament has somewhat declined with improvements in means of communication and of disseminating information. The theory that members of Parliament are brokers of ideas, and that their true function is to 'interpret the government to the people and the people to the government' is becoming less and less applicable in New Zealand. Particularly since the development of broadcasting, members of the Government have begun to see the advantages of interpreting themselves to the people; page 56and the frequency with which ministers now resort to the microphone to explain and justify their policy must further diminish the importance of the private member. Moreover, governments do not now regard the speeches of members of Parliament as indexes to the state of public opinion. The voice of the people comes to them more reliably through trade unions, chambers of commerce, farmers' organisations, and party organisers. Yet, when all this has been conceded, it remains true that Parliament is the difference between dictatorship and democracy and is in fact the guardian of those liberties and immunities which are the core of the British political tradition. For, in the first place, it is only in Parliament that freedom of speech literally means freedom of speech. At a time when official and unofficial censorships are everywhere blanketing freedom of discussion on all really vital issues, this fact is becoming of cardinal importance. And, in the second place, there is all the difference in the world between criticism at close quarters and criticism from a distance. Ten minutes over the microphone or on a public platform is sufficient for the average competent politician to dispose effectively of a whole legion of leader writers. But the rhetorical flourish, the evasive irony, the appeal to emotion, so effective when the audience is large and at a distance, are feeble weapons inside Parliament. The politician does at least know politics and is not to be put off with his own tricks. It does page 57not take him long to discover what it is that a minister is trying to hide and what subjects of discussion he is trying to baulk. The absence of rhetoric and elevation of tone in parliamentary debates is indeed their chief virtue. The casual visitor to Parliament may feel that the intricate warfare which goes on there between the parties is unreal and valueless. Ministers of the Crown, compelled daily to run the gauntlet of sceptical and relentless criticism, know better.